Court Decision Ensures Many TPS Holders in Ninth Circuit May Become Permanent Residents

The 9th U.S. Circuit Court of Appeals recently held that a grant of Temporary Protected Status constitutes an “admission” for adjustment of status to lawful permanent residence. While this is potentially promising news for TPS holders interested in adjusting to lawful permanent resident status, advocates in the 9th Circuit should wait for guidance from U.S. Citizenship and Immigration Services on how the decision will be implemented. The decision also requires that the TPS recipient be an immediate relative with an approved I-130 petition or be submitting an I-130 together with the adjustment of status application.

Jesus Ramirez was a TPS holder from El Salvador who initially entered without inspection. He later married a U.S. citizen and applied for legal permanent resident status. One of the requirements to adjust status under 245(a) is that the applicant was “inspected and admitted or paroled.” USCIS found that Mr. Ramirez was in a lawful non-immigrant status as a result of his TPS grant, but that he did not meet the 245(a) requirement of having been admitted. Thus, his marriage-based adjustment was denied. Ramirez challenged the denial and the district court held that his TPS grant did constitute an admission.

Under the Immigration and Nationality Act, inspection and admission are eligibility requirements for permanent residence. This decision allows TPS recipients, even those who initially entered without inspection, who are married to a U.S. citizen or are otherwise eligible for permanent residence, to obtain a “green card.” Several years ago, the Sixth Circuit Court of Appeals ruled in the same way.

TPS is a humanitarian program that allows foreign nationals of certain countries temporary status in the United States when, because of natural disasters or civil strife in their home countries, it is unsafe for them to return. To be eligible, a person must be present in the United States at the time that the DHS Secretary “designates” the home country for TPS.

After approval of an initial application, the individual periodically must reapply for this status, and if approved, may keep it for so long as DHS continues the TPS designation of the home country. Ten countries are currently designated for TPS; some of these designations have lasted more than a decade.

Not all TPS recipients within the Ninth Circuit who initially entered without inspection will be eligible for permanent residence under Ramirez. Individuals who do not meet all the other requirements for permanent residence will not benefit from the decision.

TPS recipients who apply for a green card must still satisfy all other requirements. Those who, like Mr. Ramirez, are married to a U.S. citizen generally will be eligible, because the requirements for permanent residence are relaxed slightly for such close relatives of U.S. citizens. For those TPS holders who are eligible, however, the decision is hugely significant—it protects them and permits them to stay in the United States in a permanent status.